United States District Court, D. Alaska
RUSSEL HOLLAND, UNITED STATES DISTRICT JUDGE
for Attorney's Fees
Eric Maurice Cannon moves for an award of attorney's fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412(d). This motion is opposed. Oral argument has
not been requested and is not deemed necessary.
action for judicial review of the denial of disability
benefits under Title II and Title XVI of the Social Security
Act, the court reversed the final decision of the Commis-
sioner and remanded the matter for further proceedings. More
specifically, the court found that the ALJ should have
developed the record as to the limitations discussed in Greg
Tyler's testimony and that the ALJ's RFC was flawed
because it did not adequately capture a moderate-to-marked
limitation as to concentration, persistence, and
pace. The court also found that there was some
question as to whether plaintiff was able to do level 2
reasoning and ordered the ALJ to more fully develop this
issue since the case was being remanded.The court rejected
plaintiff's arguments that the ALJ had erred in giving
Dr. White's opinion great weight, that the ALJ should
have developed the record after Dr. Moore criticized Dr.
Youngblood's and Dr. Cherry's testing methods, that
the ALJ erred as to Dr. Robert's opinions, and that the
ALJ erred as to Dr. Russo's and Dr. Fraser's noise
now moves for an award of attorney's fees in the amount
of $7, 533.21 and $16.26 in reimbursable expenses.
provides that ‘a court shall award to a prevailing
party other than the United States fees and other expenses .
. . unless the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.'” Gardner
v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017) (quoting
28 U.S.C. § 2412(d)(1)(A)). Defendant does not dispute
that plaintiff was the prevailing party. Defendant also does
not argue that there are any special circumstances here. But,
defendant does argue that fees and costs should not be
awarded because its position was substantially justified.
government has the burden of showing that its position was
substantially justified.” Id.
“‘Substantial justification means justified in
substance or in the main-that is, justified to a degree that
could satisfy a reasonable person.'” Id.
(quoting Meier v. Colvin, 727 F.3d 867, 870 (9th
Cir. 2013)). “‘Put differently, the
government's position must have a reasonable basis both
in law and fact.'” Id. (quoting
Meier, 727 F.3d at 870). “The ‘position
of the United States' includes both ‘the position
taken by the United States in the civil action' as well
as the agency's action or inaction ‘upon which the
civil action is based.'” Id. (quoting 28
U.S.C. § 2412(d)(2)(D)). “In determining whether a
party is eligible for fees under EAJA, the district court
must determine whether the government's position
regarding the specific issue on which the district court
based its remand was ‘substantially
justified[.]'” Id. “While” the
Ninth “[C]ircuit has been clear that when an
agency's decision is unsupported by substantial evidence
it is a strong indication that the position of the United
States is not substantially justified, ” the Ninth
“[C]ircuit has never stated that every
time” a district “court reverses and remands the
ALJ's decision for lack of substantial evidence the
claimant should be awarded attorney's fees.”
Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir.
were two bases for remand in this case. First, the court
remanded so the ALJ could further develop the record as to
the limitations discussed in Greg Tyler's testimony.
Second, the court remanded because the ALJ's RFC was
flawed because it did not adequately capture a
moderate-to-marked limitation as to concentration,
persistence, and pace. Defendant argues that its position as
to both of these issues was substantially justified.
Greg Tyler's testimony, defendant argues that its
position that any error as to this testimony was harmless was
substantially justified because “[a]n ALJ's failure
to adequately weigh a lay witness opinion can be harmless
where the opinion is contradicted by more reliable medical
evidence that the ALJ credited.” “However,
when the government violates its own regulations, fails to
acknowledge settled circuit case law, or fails to
adequately develop the record, its position is not
substantially justified.” Kirk v. Berryhill,
244 F.Supp.3d 1077, 1081 (E.D. Cal. 2017) (emphasis added)
(citing Gutierrez v. Barnhart, 274 F.3d 1255,
1259-60 (9th Cir. 2001); Sampson v. Chater, 103 F.3d
918, 921-22 (9th Cir. 1996)). The court found that the ALJ
erred as to Tyler's testimony because the ALJ should have
developed the record more fully to address the limitations
discussed in Tyler's testimony. Accordingly, the
government's position as to Tyler's testimony was not
the concentration, persistence, and pace limitation,
defendant argues that the government's position was
substantially justified because the ALJ's RFC was
consistent with the medical opinions, in particular Dr.
Moore's testimony. But, Dr. Moore's testimony on
concentration, persistence, and pace plainly did not relate
to whether plaintiff could stay on task for an 8-hour work
day. Dr. Moore testified about plaintiff's ability to
learn tasks, not his ability to stay on task. Thus,
defendant's position on this issue was not substantially
defendant's positions on the two issues that were the
basis for remand were not substantially justified, plaintiff
is entitled to an award of fees and costs. The court must
then consider whether the amount of fees plaintiff is
requesting is reasonable.
the EAJA, the ‘court's award of attorney fees must
be reasonable.'” Cascadia Wildlands v. Bureau
of Land Mgmt., 987 F.Supp.2d 1085, 1091 (D. Or. 2013)
(quoting Sorenson v. Mink, 239 F.3d 1140, 1145 (9th
Cir. 2001)). “In assessing reasonableness, courts
examine the number of hours reasonably expended on the case,
the reasonable hourly rate, and the level of success achieved
by the plaintiff.” Petersen v. Colvin, No.
2:13-cv-01147-RFB-GWF, 2018 WL 5258617, at *1 (D. Nev. Oct.
22, 2018) (citing Sorenson, 239 F.3d at 1145, 1147).
Plaintiff is requesting fees based on 41.3 hours of attorney
and paralegal time and the 2018 EAJA rate of $201.60 for
lawyers and a rate of $100 for paralegals. Defendant does not
argue that the amount of time spent ...